In a case of first impression, the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of design defect claims against a residential homebuilder under New Jersey’s Product Liability Act when the homeowner failed to comply with New Jersey’s Affidavit of Merit Statute (the Merit Statute). The December 13, 2013, holding in Calender v. NVR, Inc. t/a Ryan Homes has significant implications for the New Jersey construction industry and, more broadly, for businesses that employ licensed professionals whose alleged malpractice gives rise to claims against their employers.

The plaintiff, who fell while descending from his attic through an access panel, alleged that the homebuilder was liable under the Product Liability Act and other theories for defective architectural design, improper construction, and inadequate warnings. The Merit Statute mandates the early dismissal of negligence and malpractice claims against New Jersey licensed professionals if the plaintiff fails to serve, within 60 days of the defendants’ answer, an affidavit substantiating that there is a reasonable probability that the design professional was negligent.

The Merit Statute had not previously been applied to afford protection either to design claims under the Product Liability Act or directly to residential homebuilders that employ licensed professional architects. Both the trial court and Third Circuit determined that the Merit Statute applies to design claims against a homebuilder that, by their nature, implicate the professional judgment of its licensed professionals. The Merit Statute applies regardless of the legal theory asserted and whether the design architect or engineer is a named defendant. The Third Circuit also affirmed the ultimate summary judgment against plaintiffs on failure to warn claims, finding that the risk posed by an open attic access is open and obvious.

The Calender appellate and trial court opinions are available here.

Ballard Spahr’s Product Liability and Mass Tort Group has substantial experience defending product liability and toxic tort actions, including consumer class actions, personal injury, fraud, and warranty allegations. The firm’s Real Estate and Construction Litigation Group has substantial experience counseling developers, homebuilders, and design professionals on all aspects of real estate development and litigation.

For more information, please contact David A. Haworth at 856.873.5525 or, Neal Walters at 856.761.3438 or

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